Memeorandum

April 13, 2006

Libby's Team Replies On Disclosure

Jeralyn Merritt has Team Libby's latest on the disclosure question (29 page .pdf or here) and has added some must-read UPDATES. It's hard to believe this will make as many headlines as Fitzgerald's last filing, but dig in.

Here, for example, is a headline that will not appear: "Libby Didn't Lie, But Fitzgerald Did". From a footnote on p. 3:

Perhaps not surprisingly, given the media’s overwhelming interest in this case, an erroneous statement in the government’s response brief led to stories in the press that falsely accused Mr. Libby of making inaccurate statements – or even lying – to reporter Judith Miller about the contents of the NIE. (See, e.g., Walter Pincus, Specter Says Bush, Cheney Should Explain Leak, WASHINGTON POST, April 10, 2006, at A04, attached as Ex. A.) The government has since written a letter to the Court to indicate that, consistent with his grand jury testimony, Mr. Libby did not tell Ms. Miller “that a key judgment of the NIE held that Iraq was ‘vigorously trying to procure’ uranium.” (See Ltr. from Patrick J. Fitzgerald to Hon. Reggie B. Walton, dated April 11, 2006, attached as Ex. B.) Instead, during his testimony, Mr. Libby drew careful distinctions between the key judgments of the NIE about WMD and its section on uranium. Accordingly, there is no basis for the media reports that accused Mr. Libby of misrepresenting the key judgments of the NIE to Ms. Miller.

My apologies - I see the NY Times is covering this, with a different headline: "Prosecutor Corrects Filing About Former Aide to Cheney". Folks who track this sort of thing will want to see how many of the blogs that pounded Libby for misrepresenting the key judgments of the NIE to Miller will note the correction [And I am advised in the comments that several have; here, for example, is TalkLeft]. And here is the letter itself.

And as we read on, we wonder - was our man Fitzgerald being a bit cute with other facts in his last filing? More from Team Libby (p. 20):

The government pretends that Mr. Wilson’s wife was a part of the response Mr. Libby was instructed to make to Mr. Wilson’s false claims, and even argues that “[d]isclosing the belief that Mr. Wilson’s wife sent him on the Niger trip was one way for defendant to contradict the assertion that the Vice President had done so . . .” (Id. at 19.) In fact, as the government is well aware, contemporaneous documents reflect the points that Mr. Libby was to make to reporters, and these documents do not include any information about Wilson’s wife. Further, the government’s theory ignores the fact that neither the indictment nor the evidence supports the notion that Mr. Libby told any reporter that “Mr. Wilson’s wife sent him on the Niger trip.” The only reference to such an idea in the indictment is the allegation in paragraph 23 that Matthew Cooper asked Mr. Libby on July 12, 2003 whether he had heard that Wilson’s wife was involved in sending him on the trip, and Libby said “he had heard this information too.”

Emphasis added - presumably this refers to some typed-up talking points. We harped on the broader point a bit, or meant to - Fitzgerald never presents evidence that Cheney directed Libby to discuss Ms. Plame, even though there are passages from the Fitzgerald filing where presenting such evidence (if it existed) would be totally appropriate. For example:

Defendant further testified that on July 12, 2003, he was specifically
directed by the Vice President to speak to the press in place of Cathie
Martin (then the communications person for the Vice President)
regarding the NIE and Wilson. Defendant was instructed to provide what
was for him an extremely rare “on the record” statement, and to provide
“background” and “deep background” statements, and to provide
information contained in a document defendant understood to be the
cable authored by Mr. Wilson. During the conversations that followed on
July 12, defendant discussed Ms. Wilson’s employment with both Matthew
Cooper (for the first time) and Judith Miller (for the third time).
Even if someone else in some other agency thought that the controversy
about Mr. Wilson and/or his wife was a trifle, that person’s state of
mind would be irrelevant to the importance and focus defendant placed
on the matter and the importance he attached to the surrounding
conversations he was directed to engage in by the Vice President.

Here is the TIME article co-authored by Matt Cooper that came from that, as well as Matt Cooper's recollection of the circumstances.

And Judy Miller's account includes this on her July 8 interview with Libby:

Mr. Fitzgerald asked me whether Mr. Libby had mentioned nepotism. I
said no. And as I told the grand jury, I did not recall -- and my
interview notes do not show -- that Mr. Libby suggested that Ms. Plame
had helped arrange her husband's trip to Niger. My notes do suggest
that our conversation about Ms. Plame was brief.

And for their July 12 talk, it is not clear whether Ms. Plame was mentioned at all:

My third interview with Mr. Libby occurred on July 12, two days
before Robert D. Novak's column identified Ms. Plame for the first time
as a C.I.A. operative. I believe I spoke to Mr. Libby by telephone from
my home in Sag Harbor, N.Y.

I told Mr. Fitzgerald I believed that before this call, I
might have called others about Mr. Wilson's wife. In my notebook I had
written the words ''Victoria Wilson'' with a box around it, another
apparent reference to Ms. Plame, who is also known as Valerie Wilson.

I told Mr. Fitzgerald that I was not sure whether Mr. Libby
had used this name or whether I just made a mistake in writing it on my
own. Another possibility, I said, is that I gave Mr. Libby the wrong
name on purpose to see whether he would correct me and confirm her
identity.

I also told the grand jury I thought it was odd that I had
written ''Wilson'' because my memory is that I had heard her referred
to only as Plame. Mr. Fitzgerald asked whether this suggested that Mr.
Libby had given me the name Wilson. I told him I didn't know and didn't
want to guess.

My notes of this phone call show that Mr. Libby quickly turned
to criticizing Mr. Wilson's report on his mission to Niger. He said it
was unclear whether Mr. Wilson had spoken with any Niger officials who
had dealt with Iraq's trade representatives.

With the understanding that I would attribute the information
to an administration official, Mr. Libby also sought to explain why Mr.
Bush included the disputed uranium allegation in his 2003 State of the
Union address, a sentence of 16 words that his administration would
later retract. Mr. Libby described it as the product of a simple
miscommunication between the White House and the C.I.A.

So, based on this defense filing, Libby had prepared talking points which did not include a mention of Ms. Plame, nor did he mention a connection between Ms. Plame and the Niger trip to any reporter.

The defense re-emphasizes this:

The government’s argument that Mr. Libby attached importance to “the controversy about Mr. Wilson and/or his wife” (id. at 20) cleverly masks the fact that the evidence on which this argument relies – e.g., the involvement of the President and Vice- President, the declassification of the NIE, the Vice President’s direction that Mr. Libby speak to the press, the rarity of “on the record” statements by Mr. Libby – has nothing whatsoever to do with Mr. Wilson’s wife.

Here is yet another reason to look forward to a trial - the defense tells us yet again that they may call Joe Wilson:

Further, because the defense may call Mr. Wilson as a hostile witness, we need to prepare to examine him, if necessary, on the details of the trip, including his wife’s role in selecting him for the assignment and the findings he reported to the CIA, and later, to the press.

I'm not a lawyer, so help me out - is there a category of witness beyond "hostile"? "Incandescent", maybe?

MORE: Fun's fun, but who's having fun now?

The press had a great time taking a Fitzgerald comment out of context - in making a banal point about the difficulty of delivering documents with the objective of proving a negative, Fitzgerald wrote that "it is hard to conceive of what evidence there could be that
would disprove the existence of White House efforts to 'punish' Wilson." (Here, for example, is the Tuesday Times pretending that Fitzgerald was claiming to have an overwhelming case demonstrating a conspiracy.)

However, the defense is turning that back against Fitzgerald:

The government asserts that documents exist that could be characterized as demonstrating that the White House planned to punish Mr. Wilson, and that the plan involved talking to reporters about Mr. Wilson’s wife. (Gov’t Br. at 29-30.) However, the government says that although it has divulged some of those documents to the defense, it is currently withholding others. Rule 16 entitles the defense to all such documents. On this critical issue, the defense needs to know everything the government knows, to avoid getting blindsided with unexpected testimony about such a plot at trial.

One hopes that Mr. Fitzgerald enjoyed his headlines - now, if the defense is successful in using all that press attention as additional leverage, he gets to deliver the documents he was trying to retain.

STILL MORE: How Covert Was Valerie Plame? The defense makes a good arguement for finding out:

Finally, the government’s arguments about motive further underscore that the defense is entitled to discovery about whether Ms. Wilson’s employment status was classified, as the defense has requested in previous motions. The government resists disclosing information regarding the allegedly classified status of Ms. Wilson’s employment, and the knowledge and understanding of others as to whether that employment was classified, on the ground that the information is not relevant to the defense. Yet, almost in the same breath, the government presents an argument on Mr. Libby’s motive to lie that makes this information highly relevant and material to preparation of the defense.

The government states that it will argue Mr. Libby feared losing his job because the President “had vowed to fire anyone involved in leaking classified information” (id. at 28), and because Mr. Libby had requested that the White House Press Secretary say that “Libby was not the source of the Novak story. And he did not leak classified information.” (Id.) Mr. Libby was not, of course, a source for the Novak story. And he testified to the grand jury unequivocally that he did not understand Ms. Wilson’s employment by the CIA to be classified information. The government’s argument puts squarely at issue the credibility of Mr. Libby’s position that he did not leak classified information. The government surely cannot, on the one hand, contend that Mr. Libby knew he had revealed classified information (and thus felt in jeopardy of being fired), and on the other hand withhold from the defense information that would tend to prove her employment status was not classified and that others who knew of that employment had the same understanding.

I find this to be a bit muddled - even if her status was in fact classified (and IIRC, Fitzgerald has asserted that in various filings, and the original CIA referral was for a leak of classified information), the key point would seem to be, did Libby know (or fear) that at the time he testified to the FBI and the grand jury?

Well. The defense also reiterates its request for the CIA referral document. Here is just one of their arguements:

And, to the extent that Director Tenet was involved in the creation of the referral documents, or actively pushed the DOJ to investigate the disclosure of Ms. Wilson’s identity, the referral documents would show that the bias against Mr. Libby reached to the highest levels of the CIA and did not simply represent the complaints of lowerranking employees. Further, Mr. Tenet is a likely witness. If he was personally involved in the referral process, then the referral documents would be important for preparing to examine him on the issue of bias. To prepare for trial effectively, the defense must have the opportunity to explore all of these issues further.

I have not seen (or don't recall) a timetable for the judge's final decision on these discovery questions.

UPDATE: A very interesting point from the Anon Lib - does the filing contain a hint that Libby had a secret understanding with Bush and/or Cheney such that Libby was not worried about being fired for leaking classified information?

My quick reaction - if Fitzgerald had such evidence, his most recent filing would have been a great place to introduce it. Fitzgerald is clearly scraping around for any evidence at all of a Bush or Cheney role in this, so again, his silence speaks volumes.

Fitz is arguing the case when he could (and should) avoid detailing and characterizing the inculpatory nature of the evidence. Same pattern at his indictment presser - he went far afield from the charge, and needlessly so.

Separate subject, making "less than" and "greater than" characters appear in rendered html. One uses four characters, which when run together, make the character.

--TSK9, I'm a little confused about the point of the discussion about Grossman, but in case anyone has a question about it, he is the Underecretary referred to in the indictment.--

the point I was making to Clarice is that under the thread in which you were putting together the redaction recreation Cecil suggested Marc Grossman

Because of that suggestion I just googled around and found the Oct. 2005 TNR blurb about Fitz's spokesman confirming (something he's not supposed to do, I believe) some aspect of the indictment which happened to be about Grossman.

It seemed interesting in light of the gag order discussion, that's all

OK....semi-caught up again.....man - I've got a big project I'm working on and you guys are moving fast.

Just to toss this in - there may be a different motive behind WaPo cooperation - a business reason - what to them may be a bigger motive. Remember that the DP (Dinosaur Press) has been losing ground in the market and a lot of it seems to be due to their lack of balance in their reporting. WaPo was one of the worst. All of these organizations can see the handwriting on the wall - that if they do not change - and if they don't wage a proper PR war in public - they will end up closing the doors. The stockholders have a significant amount of pressure they can apply. I suspect that there is a tremendous amout of "start making a profit" motive behind all of this as well.

Would be nice if true. I'm watching the NYT straight down the cliff stock price and weighing that against the cost of lawyers in the Libby, Hatfill, Wen Ho and NSA leak cases and thinking it's a better deal to be their lawyer than their stockholder.

cboldt, I certainly agree that sentence is, at best, only marginally relevent to the point Fitzgerald is trying to make. The main point -- that how important others thought Plame was doesn't indicate how important Libby thought she was -- is a not unreasonable. But then Fitz detours into arguing that the evidence will show Libby did consider her important; which presumably is intended to undercut the materiality of information to the contrary be showing, basically, that it wouldn't do the defense any good.

Okay, and sorry, that "recidivist" comment was meant to be good-naturedly funny, which doesn't come across that well on the re-read. (BTW, the reason I started the cut-and-paste thing is because I couldn't keep the error rate on tag-typing to a bearable level--the keystroke sequences are just too odd.)

Fitz is arguing the case when he could (and should) avoid detailing and characterizing the inculpatory nature of the evidence. Same pattern at his indictment presser - he went far afield from the charge, and needlessly so.

That was my point exactly. It made no objective sense and seemed needlessly prejudicial (especially allegations he obviously had no intention of charging . . . or proving), and inappropriate. That presser in particular really turned me off.

Specter, in considering the NYT declining revenues, I forgot to factor in the amount of ink and paper they have to spend on corrections:
"After correcting itself on the Lewis Libby leak yesterday, the Times on Friday corrects another Bush-related intelligence story by reporter Eric Lichtblau that brought much criticism from conservative bloggers like PowerLine.

This is what Lichtblau falsely claimed March 29: “In a rare glimpse into the inner workings of the secretive court, known as the Foreign Intelligence Surveillance Court, several former judges who served on the panel also voiced skepticism at a Senate hearing about the president's constitutional authority to order wiretapping on Americans without a court order.”

Today the Times admits: “An article on March 29 about congressional hearings on the Bush administration's program of domestic eavesdropping referred imprecisely to testimony about the secretive court known as the Foreign Intelligence Surveillance Court, which requires warrants for eavesdropping under most circumstances. While two former judges said they believed that Mr. Bush was bound by federal laws governing intelligence gathering, they did not explicitly express skepticism about whether he has the constitutional authority to order wiretapping on Americans without a court order.”

As Times Watch pointed out at the time, “Lichtblau doesn’t quote any of the judges actually voicing that skepticism about Bush’s actions -- skepticism Lichtblau certainly feels, judging by his slanted reporting in the past.”

Last year due to the vagaries of the Hebrew calendar, Passover took place on the 62nd anniversary of the Warsaw Ghetto uprising. In my reading about the events involved I was struck by a statistic that was cited in both the story of the Exodus from Egypt and in the Warsaw Ghetto; fully 80% of the Jews remained passive in the face of doom.

Here are two offerings for we who celebrate Holy Week,
Robert Godwin's confession - can only hope that some will read it:Great Leaping Leftist, My Corrupt and Degenerate Soul!For what I really wanted back then was for my conscience to be asleep, and the last thing I wanted was to be around someone with an awakened objective conscience. That would have bummed me out. Big time.

Fitzgerald's response is, "So what if Plame was unimportant to CIA, State and NSC? cbolt opines "Libby's state of mind as to the importance of Plame won't be reflected in any activity undertaken by CIA, State and NSC that did NOT pass through OVP." In other words, disinterest at CIA, State and NSC is not exculpatory to Libby (nor would strong interest at CIA, State or NSC be inculpatory)."""

No, but it might tend to impeach some CIA guy who says me and Libby discussed Plame from 2:34 to 2:37 PM on Tuesday, 14 June in the outer office of the Counsel to the VP and Libby was somber and brooding and had a green hanky stucking 2.6 inches up from a very classy jacket pocket.

It might tend to show that the governments witnesses were HIGHLY COACHED and were provided outside sources of information to REFRESH their stunningly impeccable memories.

Also it might tend to explain why the CIA guy had no problem blabbing to Novak about some analsyts and why noone at CIA bother giving old Tenent a call and have him quash Novaks story.

Or why some guy over a State would reveal Plame off the cuff to a couple of buddies who happen to be reporters, rather then as part of a dark plot to destroy the Wilson family name and kill his dog.

JMH:
You have some really good insights into this addictive case and have helped me understand it more completely. I also agree with you and Brenda, Welcome to JOM ; that Tenet did the referral as a political move not as a legitimate concern for security. The silence from all of these players is deafening. Aren't they feeling nervous every day?

also who and when was the first reporting on Fitz's firestorm, I mean discovery response...that might help

Well, the first published news report was from Gerstein at the New York Sun - not exactly the liberal MSM. For purposes of accuracy and completeness, I do believe yours truly beat Gerstein by an hour or so with a fairly extensive post, including the headlines, on an obscure comments thread. I've got evidence to prove it. But I swear, I got the filing off PACER; much as I wish I had the sort of stovepipe from Fitzgerald that York has from Team Libby, it's just not so.